Because marketing orders are used to solve shared problems across an industry, the first step to creating a one is for the industry to hold a meeting where they formally identify mutual marketing problems and determine whether a marketing order could help them solve these problems. During these discussions, USDA staff may help the industry identify marketing order authorities relevant to the industry’s problems. After that point, these steps are followed:
- If there is general industry support for a program, a preliminary proposal is prepared by a steering committee of key industry people. Growers and shippers are included in discussions on the proposal.
- A list of industry growers and handlers is developed by proponents. Next a request for a hearing on the proposal is sent to the Administrator of AMS. It should indicate the degree of industry support, the problems the program would address, and suggest a possible hearing site and approximate date.
- AMS reviews the request and supporting documents, as well as any alternative proposals from interested parties. During this period, the staff of USDA is free to discuss the merits of elements included in any proposal with the industry.
- A Notice of Public Hearing is then issued, and it is published at least 15 days before the hearing. USDA staff can comment only on procedural questions after this point.
- A USDA Administrative Law Judge presides at the public hearing and a verbatim record is compiled of the testimony of opponents, proponents and others, including USDA personnel. Because proponents bear the burden of proof, they must present evidence to support the need for the program, and every provision in it. Briefs arguing for particular decisions may be filed with USDA after the hearing.
- A recommended decision is issued by USDA based on hearing evidence. This is USDA’s formal recommendation on the proposal. Persons are allowed to file exceptions to it for a set time period.
- After consideration of all exceptions to the recommended decision, USDA prepares a final decision. If it is favorable, a grower referendum is held on the proposal.
- While producers are voting, copies of a companion marketing agreement are sent to handlers for their signature. Through their signatures on the agreement, handlers indicate their intention to abide by the terms of the program.
- If at least two thirds of the growers voting by number or by volume approve the proposal, the Secretary of Agriculture issues the marketing order.
This process may take up to one and one-half years (18 months) to complete, depending on the complexity of the proposal, the size of the industry, and the availability of resources within the industry and USDA to devote to the proposed program.